The thinking behind this blog is really simple: The guilty should be prevented from reoffending and the innocent should not be convicted -- not very complex but often not achieved.

The spotlight is also thrown on feral law enforcement

Thursday, March 31, 2005

WOMEN CAN DO NO WRONG IN PATERNITY MATTERS

Consider the case of Liam Magill. When his wife Meredith gave birth to two babies, each born with blue eyes and blond hair, Liam assumed they were his. He had no reason to think otherwise. He signed the birth certificates as any new father does. He cared for the children, loved them, cherished them as most fathers do. But Liam's world fell apart when he discovered neither child was his.

Caught between a rock and a hard place, Liam, who still loves the children, wanted Meredith to be held accountable for years of dreadful deception. He went to court seeking damages for deceit -- recompense for expenses he incurred and for the pain and suffering he endured. But last Thursday, the Victorian Court of Appeal tossed out his claim, overturning an earlier decision that awarded him $70,000 for paternity fraud. Emotionally shattered, Liam will say only that March 17, 2005, should be remembered as a day of infamy for Australia's legal system. And perhaps it should. Before dismissing Liam as a disgruntled litigant, these are the undisputed facts.

Liam and Meredith married on April 9, 1988. The first of three children was born in April 1989. From September 1989 until early 1995, Meredith had regular unprotected sex with a secret lover. The Court of Appeal agreed that Meredith was "having more frequent sex with her lover than ... her husband". On July 30, 1990, a son, Heath, was born. On November 27, 1991, a daughter, Bonnie, was born. Meredith and Liam separated in November 1992 and Liam made child support payments for more than five years. In 1995 Meredith admitted to Liam her concerns over paternity. In 1999 they agreed to DNA tests and in April 2000 Liam learned the sad truth. Heath and Bonnie were not his children.

Then last week Liam learned that the law will not hold Meredith accountable for her deceit. Careful to say that the law of deceit may apply to other cases of paternity fraud, the judges shied away from finding it here. They said Liam was not induced to act on the deceit. It is a surprising decision because it is hard to imagine a clearer case of a man suffering loss through paternity deceit.

Feminists were delighted with the result. On ABC Radio's PM program, Joanna Fletcher from the Victorian Women's Legal Service described the litigation as an "ugly affair" that should never have proceeded. "It's bad for children," she said. "You really have to ask how damaging it must be for the children of this marriage to have the man that they've always known as their father suing their [mother] for an injury and for return of money spent on them ... really saying to them that he got no benefit or joy out of his relationship with them." She would say that. The VWLS funded a large chunk of this long legal battle. While Liam sold his house to pay for the litigation, federal and Victorian taxpayers funded Meredith. (And when that dried up, Clayton Utz took up the case on a pro bono basis.)

The VWLS has argued that Meredith's defence deserved to be funded by the public purse. But what precisely is the public interest in defending paternity fraud? That women should be left alone to go about their deceit without penalty, striving for a world without consequences? If there is a public interest, it is one that says men have the right not to be duped into playing dad.

Feminists who argue for special pleading for women, who fight to lower the bar of responsibility for women, do nothing for women's equality. Indeed, if feminism is reduced to this, expect many to turn away. Every dollar spent defending deceit is a dollar not available for a more worthy case. More important, how does defending deceit protect the interests of children? By denying men the right to know and by not penalising the mother for deceit, we end up giving women the right to deceive. That cannot be good for children.

Feminists seem to draw upon the interests of children only when it suits them. Concerns about children were thin on the ground when Kerry Melchior went to the High Court arguing that her healthy baby, born after a botched sterilisation, was unwanted and a financial burden. She said that although she loved her child, she should not have to pay for its upkeep. The court agreed and awarded Melchior damages. Clearly that case encourages parents to come to court to belittle the birth and life of their child to boost their damages claim.

To her credit, feminist Eva Cox joined ethicists and psychologists who were concerned that this case labels a child as a burden. But for others such as University of Sydney law professor Regina Graycar, this was a woman correcting an injustice. Yet when Liam Magill claims damages for deceit, we are told he is seeking revenge. Paternity fraud spawns many victims. A father loses a child he thought was his. Children suffer as the family they once knew collapses around them.

And women lose out, too. Cheryl King, Liam's second wife, has had to pick up the pieces - emotional and financial - of the deceit. In pure numbers, the extent of paternity fraud is staggering. Firms that carry out DNA tests say that 20 to 30 per cent of DNA tests done for men who have doubts about paternity reveal that they are not the biological father. With a time bomb waiting to explode, we need clear messages to remind women that deceiving men into fatherhood is unacceptable. Last week federal Attorney-General Philip Ruddock introduced legislation making it easier for men who discover they are not the father of a child to recover child maintenance payments and property transferred in family law settlements. The next step is convincing courts to hold women accountable for deceit over paternity.

Wednesday, March 30, 2005

WHAT DO YOU DO WHEN THE POLICE DO NOTHING?

Victimhood is compulsory in Britain

A middle-aged teacher is starting a six-month jail sentence today because she decided to fight back against "yobs" with a pellet gun. Linda Walker, 47, who teaches at a special school for children with behavioural problems, has been heralded as an example to other less energetic and caring teachers. Her life and career now lie in ruins after a moment of self-confessed madness when she pursued a group of teenagers she blamed for a campaign of vandalism directed at her home and family.

During the midnight confrontation near her suburban home in Urmston, Greater Manchester, she fired up to six rounds from the gas-powered air pistol into the ground close to the feet of her antagonist. She later confessed to police officers that she had acted "like a madwoman possessed" but complained that the activities of the youths had left her at breaking point.

Mrs Walker looked apprehensive in the dock at Minshull Street Crown Court, in Manchester, as the judge told her yesterday that she would serve at least three months before being considered for release. Her partner, John Cavanagh, 56, a lecturer at Salford College, watched from the public gallery as Mrs Walker, who has complained that the law always appears to be on the side of the "yobbos", was led to the cells to begin her sentence.

Mrs Walker shares her home in Urmston with Mr Cavanagh and her two 17-year-old sons. She has taught children with special needs for 25 years, rising to head of Food Technology and head of Year 11 at New Park High School, Salford, where her work has been praised by Ofsted inspectors. Her work has also won the admiration of colleagues. Nigel Haslam, a former head teacher, said: "She was very professional and thorough. She did a tremendous amount for young people. She worked all the hours that came and provided the students with many opportunities to succeed."

Beyond the school gates, Mrs Walker was being driven towards breaking point by groups of youths "terrorising" her neighbourhood. She logged a catalogue of complaints with officers, from abusive phone calls to thefts and vandalism. Anonymous callers would abuse her son as a "poof". A wing mirror of her other son's car was broken off, the garden shed was broken into, ornaments thrown over the wall and fish stolen from her pond. The final straw came when she noticed that a five-litre plastic container of washing up liquid was moved from the back garden and emptied over her son's car in the driveway.

She was "fuming mad" when she rushed out of her house at night to confront a knot of teenagers 250 yards away. After an exchange of abuse she returned home to arm herself with a Walther CP88 gas-powered air pistol, which she had kept in her underwear drawer for four months since she had been burgled, and an air rifle.

She phoned the police to tell them that she was going to "shoot the f****** vandals. I've got an air rifle and a pistol and I'm going to shoot them."

Mrs Walker squared up to one 18-year-old, firing off several rounds from the pistol into nearby ground. The youth, Robert McKiernan, now 19, who has a number of convictions including burglary, told her that she was a "psycho".

Those employed by local government like to tell the taxpayers that no special privileges are gained from membership in the bureaucracy. "We're just like you," they purr as their salaries grow faster than Jack's beanstalk. But every once in a while, the bright light of public scrutiny reaches the dark office corners where secret handshakes and passwords are handed down, and common citizens are reminded of the perks enjoyed by insiders. Such was the case last week, when Edward G. Henderson, the former chief Southern Nevada administrator for the Department of Parole and Probation and a recovering alcoholic, had a driving-under-the-influence charge dismissed.

On Oct. 9, according to city of Henderson police reports, officers responded to a two-car accident at Warm Springs Road and Stephanie Street. Officers reported that Mr. Henderson walked with "an unsteady gait" and "had bloodshot eyes and appeared to be sleepy." Mr. Henderson said he had not consumed alcohol and was not under the influence of medication, yet he failed three roadside sobriety tests. He was arrested and jailed for a few hours.

It was the Parole and Probation official's second brush with Henderson police in less than two years. In March 2003, he drove his BMW into a CAT bus stopped at a traffic signal. Police couldn't locate Mr. Henderson immediately after that crash. He eventually pleaded no contest to charges equal to parking violations, paid a fine and went to traffic school. Shortly after his October arrest, Mr. Henderson was removed from his post and reassigned to special projects. The department gave no public reason for the move. A few months later, Mr. Henderson left the agency.

On Thursday, when Mr. Henderson appeared in Municipal Court in connection with the arrest, the prosecution's table was empty. No case against Mr. Henderson had been prepared. No one representing the city attorney's office showed up. Municipal Judge Ken Proctor dismissed the case with prejudice, meaning it cannot be refiled. "This is absolutely unacceptable," said Sandy Heverly, executive director of Stop DUI. "There are a lot of unanswered questions here, and this does not send a very good message to the general public."

City Attorney Shauna Hughes says the case was assigned to an outside attorney for prosecution to avoid any conflicts of interest because her chief investigator had formerly worked with Mr. Henderson, and her investigator's wife worked for Mr. Henderson at the time. Ms. Hughes says someone dropped the ball; she hopes to revive the case. Meanwhile, residents will look at the timing of Mr. Henderson's transfer and "retirement" and the subsequent dismissal of his case and wonder whether another Good Ol' Boy struck a behind-the-scenes deal.

Tuesday, March 29, 2005

Clerical error sinks child rape trial

Of course clerical errors matter far more than child rape!

An accused child rapist has escaped being sent to trial because of a bungle by a prosecutions clerk who left a file sitting in her in-tray. By the time the senior clerk noticed the alleged sex offender's indictment on Monday, it was past the deadline for it to be presented to court.

On September 21 last year the man, who was charged with rape and three counts of indecent treatment of a child, was committed to stand trial in Townsville District Court. The Crown had six months from the date of committal to present the indictment to the court. On Thursday, the Office of the Director of Public Prosecutions was refused an extension of time to present the indictment.

Tony Collins, a Townsville lawyer who represented the alleged offender, said it would be up to police to recharge his client and start the court process all over again.

Judge Clive Wall said if he were to agree to the application for an extension of time to present the indictment, "some encouragement may be given to the Office of the Director of Public Prosecutions to not be concerned with proper systems and with time limits applicable to the presentation of indictments". The defendant was ordered to be discharged. The DPP office could not be contacted yesterday for comment.

A TRIAL THAT COST 60 MILLION POUNDS -- BUT STILL NO VERDICT AT THE END

Six men were acquitted today when one of Britain's longest and costliest fraud trials collapsed at the Old Bailey. The case, alleging corruption in connection with the Jubilee Line Underground extension in London, is estimated to have cost 60 million pounds and had lasted more than 18 months when it suddenly imploded.... The trial folded after sickness, jury problems, lengthy delays and disruption dogged proceedings so much that a fair trial became impossible. The jury was finally discharged today by Judge Ann Goddard with her thanks.

She then formally cleared the six after the prosecution said that they would not pursue a retrial and offered no evidence. Anthony Upward, QC, prosecuting, said the prosecution's decision to ask for the jury to be discharged was taken with the approval of the Director of Public Prosecutions after a review of the case.....

But the defendants themselves expressed their fury at the whole process after being formally cleared by the judge. One of the six, Mark Skinner said: "I have been found not guilty of both offences alleged against me, allegations I have consistently denied. "Although I should now feel relief and happiness, I feel only anger - anger at a prosecution which has destroyed my business and tortured my family for over seven years, anger at a prosecution that has caused significant damage to my health, anger that no one in a position to do so stepped in and ended what to all reasonable observers had become a farce long ago, anger at the fact that those who have persecuted me to this day - the British Transport Police and the Crown Prosecution Service and those instructed by them - fail to accept that they got this terribly wrong. "And anger at what they have done in destroying my reputation in order to protect theirs."

Mr Upward told the court that the Crown had a duty to the public to ensure that every trial was fair and seemed to be fair. "We have now concluded that the continuation of this trial would undermine that fundamental principle. Since September 2003 this case has suffered disruption. Following the opening for the defence it began to lose continuity. It has now lost all momentum," he said.....

The trial had been punctuated with problems throughout and had even been criticised in the House of Commons for "the inordinate amount of time" it was taking. The case started in 1997 when the British Transport Police started investigating alleged corruption in connection with contracts for the Jubilee Line extension. It was not until June 2003 that the trial of the six men accused first opened. The jury was told it was expected to last for 18 months. By March last year - still in the midst of the prosecution case - the jury was down to 10 members. One had become pregnant and the other arrested for alleged benefit fraud.

The trial had already been spotlighted in the House of Commons last June when John Burnett, MP for Torridge and West Devon, had criticised "inefficiencies" of the crown prosecution service. ... Defence lawyers had also applied to the Attorney General to stop the prosecution last summer. But the request was turned down. The defence claimed throughout that the case was unmanageable and repeatedly urged Judge Ann Goddard to halt it.

Monday, March 28, 2005

ON DEATH ROW DUE TO SUPPRESSED EVIDENCE

More than 20 years ago, a jury took only about an hour to convict James Floyd of murdering an 86-year-old woman in her home. They took another hour to send him to death row. The evidence seemed compelling. Police caught Floyd cashing the victim's stolen checks. A bloodied sock, a jailhouse snitch, tire tracks and some hairs also were presented at trial. But on Thursday, the Florida Supreme Court tossed out Floyd's conviction and death sentence because prosecutors didn't share other important evidence with defense attorneys. The ruling called the new evidence "unsettling."

That evidence included statements from a neighbor who claimed to see two other men entering the old woman's St. Petersburg house about the time of her death, as well as inconsistent reports from detectives and information about how the snitch tried to leverage his testimony for a lighter sentence on his own charges. "It's outrageous. It's important evidence," said Pam Izakowitz, Floyd's Tampa attorney. "It could exonerate Floyd. He didn't kill her."

Prosecutors are required to provide defense attorneys with copies of all documents and evidence that could be material to a case. It was unclear Thursday why the information was not provided to the defense. Doug Crow, one of Pinellas-Pasco State Attorney Bernie McCabe's top assistants, said the withholding of evidence most likely was an honest mistake. "I've been here 30 years, and our office has never operated that way," Crow said. McCabe said he didn't know if the state would bring Floyd to trial again.

The attorney who prosecuted Floyd at trial, Joseph Episcopo, also was the attorney who prosecuted Rudolph Holton, who was released from prison in 2003 after 16 years on death row for a murder he didn't commit. Episcopo, who is now in private practice in Tampa, was in New York on Thursday taping segments for Court TV and CNN, an assistant said. He could not be reached for comment.

Floyd's wife, Hannah, who married Floyd while he was on death row, said she cried for an hour after hearing the news Thursday morning. "I knew it was going to happen," she said. Martin McClain, a lawyer for Floyd, said he didn't think Floyd would be convicted again. "I'm convinced that if they take it back to trial they cannot get a conviction, based on what the neighbor lady saw," said McClain, a veteran lawyer for death row inmates.

St. Petersburg police arrested Floyd for the Jan. 16, 1984, murder of Annie Bar Anderson, who was known in her St. Petersburg neighborhood as the "Butterfly Lady." She raised Monarch butterflies on her back porch. Anderson had been stabbed 11 times in the stomach and once in the heart. Detectives developed Floyd, then 23, as a suspect when he tried to cash one of Anderson's stolen checks. Floyd gave conflicting statements at first and provided a false alibi. A sock spattered with blood - the same type as Anderson's - was found in Floyd's jacket pocket. Several hairs also were found on Anderson's bed. This was before the days of DNA testing, so all forensic experts could tell was that the hairs belonged to a black person. Floyd is black, Anderson white. Tire tracks found on a concrete slab in back of Anderson's home also were "similar" to the tires on Floyd's motorcycle, police said.

Floyd, who worked as a custodian for a local church, told police he had found Anderson's checks in a trash bin in an alley. He admitted forging them, but denied killing Anderson. After Floyd's arrest, a fellow inmate said Floyd told him that he had stabbed a white woman. The snitch, a white man, admitted in court that he didn't like black people.

In 1994, new defense attorneys got the full case file - and found the withheld evidence. Attorneys asked Luce for a hearing, but he refused. The Florida Supreme Court later ordered Luce to hold one. Attorneys presented the new evidence and asked Luce for a new trial. He refused. Years ticked by. The attorneys took the case to the Florida Supreme Court, which ordered a new trial for Floyd on Thursday. "There is little dispute that the state possessed exculpatory evidence that it failed to provide to Floyd," states the ruling........

"It is clear that the case against the defendant was not among the strongest we have encountered," the ruling states, later adding: "After collectively examining the evidence suppressed by the state, it is apparent that it could have provided a basis for reasonable doubt in the minds of some jurors. "We conclude that our confidence in the defendant's murder conviction has clearly been shaken by the evidence that the state suppressed in this case."

"With no murder weapon and no body, a blood-stained tie became the key to putting a quietly-spoken Canadian behind bars for the murder of his estranged wife. But a simple explanation of how Susan Christie's blood came to be on Rory Kirk Christie's tie has now helped quash his 2003 conviction and a retrial has been ordered. On Thursday, the West Australian Court of Criminal Appeal ordered a retrial, finding there was fresh evidence about the tie and that the jury had been misdirected. In his written reasons, judge John McKechnie said the tie was the "only physical evidence capable of linking the appellant (Mr Christie) with the crime".

The prosecution had claimed that Mr Christie, then 32, was wearing the tie when he killed his 42-year-old wife. Mrs Christie disappeared in November 2001. Her body has never been found. During the sensational trial that led to Mr Christie's conviction and an 11-year jail term, prosecutor Troy Sweeney said the husband had motive to murder his wife because of the couple's disputes over the shared custody of their son, Fraser, now aged eight. And the prosecution rejected as a "complete fabrication" Mr Christie's explanation that the tie might have been stained when Mrs Christie's nose bled at Fraser's birthday party.

But a child witness has since sworn an affidavit that he saw Mr Christie at the birthday party and that he had been wearing a tie when he helped Mrs Christie with her bleeding nose. Judge McKechnie noted that Mr Christie's credibility had been attacked over his explanation. "There was a direct attack on the appellant's credibility on a vital issue in circumstances where, unbeknown it must be said to the prosecutor, there was evidence capable of supporting him on the issue," he said. "The absence of the evidence of (the child) deprived the jury of all of the facts and circumstances surrounding the deceased's blood on the ... tie."

Sunday, March 27, 2005

PROSTITUTES WOULD HAVE BEEN A LOT BETTER BARGAIN THAN THIS:

A judge has awarded the former wife of a multimillionaire businessman a divorce settlement worth more than $40 million even though she admitted having affairs with her rock-climbing guide and a man she met on a flight to China. In addition to a $24 million payment, Susan Sosin will keep the couple's $3.6 million Manhattan apartment, $2 million Utah ski house and $800,000 home in Wallkill, N.Y. But she has to vacate the couple's two mansions in Connecticut and three desert properties in Arizona.

In the divorce granted Wednesday, she also gets to keep $6 million in her brokerage accounts, eight cars and $2.9 million in jewelry, including a ruby piece her husband had bought for her but hadn't given to her prior to their divorce. Richard Albrecht, attorney for Sosin's husband, Howard, estimated the total value of the award at $43 million, or 27 percent of the estate. She wanted half, he said. "My opinion is her conduct in this matter affected the award," Albrecht said.

Susan Sosin's lawyer, Frederic J. Siegel, estimated the total value of the award was about $45 million and said his client asked for about 45 percent of the estate. "By anybody's standards, it's a large amount of money," Siegel said. "Both parties will be able to move on with their lives." Siegel said both sides were at fault for the divorce and defended his client as a good mother.

Howard Sosin, 54, who founded AIG Financial Products in 1987, filed for divorce after discovering his wife's relationships in February 2003. During an upgrade of their computer system, he found hundreds of e-mails between his wife and her lover, according to testimony. Susan Sosin, 51, admitted in testimony that she had become intimate with a guide while rock climbing in 1996, though she said it was a spontaneous and isolated occurrence. During a flight to China in 2000, she met a married man, and that led to a lengthy affair, according to testimony.

"The parties' marriage has been undeniably marred by the defendant's infidelity," Superior Court Judge Howard Owens stated in his verdict. "Although her sexual relationship was not the sole cause of the breakdown, it did effectively terminate the marriage."

Howard Sosin's wealth was estimated at $168 million. Among the assets he gets to keep are $89 million in bank accounts, 10 of the couple's 18 cars, $960,000 worth of private club memberships and $22 million in fine art. The couple met in 1978 when Howard Sosin was an assistant professor at Columbia University. At the time, she was married to another man and working in retail. Howard Sosin served as the president and chief operating officer of AIG Financial Products until 1993 when he left the company. Following litigation, he received $182 million from AIG

Saturday, March 26, 2005

Calfornia has a reputation for perverse legal verdicts but the Australian State of New South Wales has become a close rival for leadership in the annals of strange verdicts and proceedings

An accused heroin dealer has had his conviction and seven-year sentence quashed because his indictment was not signed by an authorised Crown prosecutor. The Court of Criminal Appeal has ruled that the mistake was not a mere technicality but one that went "to the root of the trial".

Nicolai Halmi was charged with supplying five blocks of heroin weighing 1.789 kilograms to two people at Bass Hill in May 2000 but the District Court ordered a separate trial from his co-accused. This began on July 29, 2003, with the new indictment signed "C. Traill, Crown prosecutor on behalf of the Director of Public Prosecutions." Kate Traill did not have the authority to do so. So after Halmi, who pleaded not guilty, was found guilty after a seven-day trial, his lawyers formulated an appeal to the state's highest criminal court.

The DPP, Nicholas Cowdery, QC, said Ms Traill "was devastated" at the outcome and he said revised procedures would ensure such an error was not repeated. Justice Virginia Bell, with whom Justice Carolyn Simpson and Justice Terry Buddin agreed, said Ms Traill was a barrister in private practice and did not have the required power under section 126 of the Criminal Procedure Act. The Crown argued that it was merely a procedural irregularity and the indictment was identical to earlier ones signed by authorised prosecutors, but Justice Bell did not agree.

She said the provisions that dealt with amended indictments "seem to me to go to necessary legal formalities and not to mere practice and procedure". Justice Bell said it was irrelevant that Halmi was not prejudiced at his trial. "So much may be accepted, but this cannot cure a defect that goes to the root of the trial. The indictment on which this appellant was arraigned and upon which his trial proceeded was invalid."

At his trial, Halmi claimed there was an innocent explanation for his fingerprints being on the plastic the heroin was wrapped in. He said he had given a lift to the co-accused on the day and had no idea the man was involved in the supply of heroin. Mr Cowdery said Halmi would face a fresh trial and would not be released from prison unless he succeeded with a bail application. He said all private barristers had been given additional information "which sets out very clearly what they can and can't do".

Friday, March 25, 2005

CAN YOU BEAT THIS?

A murderer was freed because the evidence against him was too strong!

A man who confessed to killing two women walked free from court yesterday when a judge ruled the evidence too damning. Father-of-two Lyle Simpson admitted being a killer, DNA evidence proved he was at the scene of one murder and he tried to commit suicide a day later. Yet after three days of legal argument in the NSW Supreme Court, Judge Anthony Whealy ruled some evidence was just too damning and ran the risk of "unfair prejudice" to the accused. A married Simpson was accused of murdering mistress Rhonda Buckley, 51, in September 2001 in Georgetown, Newcastle.

But the family of the victim were devastated by the decision which enabled Simpson, 45, to go free after 16 months in jail awaiting trial. Ms Buckley's daughter Suzy Westgarth said: "I am bloody angry, so angry."

Outside court yesterday, Simpson said: "I'm relieved to go home. I've got two disabled kids and I just want to live my life and be left alone by the police. I've had a rough time. My wife's been through hell. If you haven't been in jail you don't know what it's like to be locked up in cells, no TVs and radios. I've never been in trouble before ... I can never replace that 16 months."

The decision comes a day after Senior Deputy Crown Prosecutor Margaret Cunneen criticised defence lawyers for using "ambush, trickery" to get criminals off.

Evidence tendered in court showed Simpson phoned his wife Kamara several times on September 25 and told her he had "killed two sheilas". In another call, he allegedly said: "I have killed a prostitute, there's two less sheilas in the world."

Ms Buckley, a grandmother and mother-of-three, was discovered strangled in her bed by her daughter Suzy and son-in-law Steve Westgarth. Simpson's DNA - in the form of semen - was found on the body. The day after the death, Simpson was found unconscious in his car south of Newcastle after trying to gas himself with exhaust fumes. The court ruled the suicide attempt as inadmissable.

Simpson was arrested two years after Ms Buckley's death. But in court, his defence team led by legal aid solicitor Joanne Harris successfully argued the evidence would unduly prejudice the jury. A court source said: "The evidence would be too prejudicial for the jury to hear, they would naturally assume from some of the evidence, that he was guilty. They also successfully argued that the jury could believe he was guilty if he attempted suicide when there could be other reasons for it."

Under Section 137 of the Evidence Act 1995 "the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant." What that means, is if the a single piece of evidence is so overpowering it would sway a jury from giving a fair trial, it cannot be used.

Thursday, March 24, 2005

This one is from a little while back now but is definitely worth repeating:

Leaving cookies for a neighbour can get you fined? It is the neurotic neighbour who should have been fined for being a nuisance

Out of school for the summer last year, Taylor Ostergaard and Lindsey Jo Zellitti, 17 and 18 at the time, were looking for a project. One evening they decided to make some home-baked cookies to bring cheer to their neighbors. They had to skip a dance to do it, but Taylor asked her father for permission for the cookie project. He gave his permission with two conditions: the chores had to be done, and he had to get some of the cookies!

By the time the cookies were all made the sun was just dipping below the horizon, so Taylor and Lindsey rushed out to deliver them, only stopping at the houses of their Durango, Colo., neighbors where lights were on inside. Part of the idea was to do anonymous good deeds, so they put a message on each plate. Written on a big red heart, it read: "Have a great night. Love, The T and L Club."

One of the nine neighbors they delivered to was the Young's. Wanita "Renea" Young, 49, was home, and a light was on in her kitchen. The teens put a plate of cookies on her porch, knocked at the door, and scampered off -- they were doing anonymous good deeds, after all, so it wouldn't work if they were seen!

Renea says she was startled to hear someone at the door at night and called out, "Who's there?" Of course, the two gals were already gone. With no reply forthcoming, Renea says she was so terrified that she called 911. The sheriff responded and found no signs of trouble, no vandalism, no trespass -- just a plate of cookies. The next day she was still suffering from such severe anxiety she thought she was having a heart attack. She checked into the emergency room, but she was not having any heart problems.

When Taylor and Lindsey found out a neighbor had been frightened by their good deed, they were horrified. Quite understandably, they chose not to go knocking at Renea's door, so each sent her a letter of apology. Taylor's said in part she "didn't realize this would cause trouble for you. ... I just wanted you to know that someone cared about you and your family."

The Ostergaard and Zellitti families offered to pay Renea's medical bills -- about $900 worth -- if she would sign a release saying she wouldn't sue. An over-reaction? Not in this day in age. Renea refused to sign the release. She said that she was not satisfied with the written apologies, in large part because they weren't delivered in person, so she filed suit in La Plata County Small Claims Court. The suit demanded $3,000 to cover her medical expenses, a motion-sensor light for her porch, lost wages, and punitive damages.

Taylor and Lindsey quickly learned an important life lesson: good deeds often don't go unpunished.

The teens brought letters from other neighbors saying they liked the cookies, they found the gift a lovely surprise -- and noted that they weren't terrified by the girls' gift. Taylor's parents also wrote to the court. "We feel that knocking on a door and leaving cookies is a gesture of kindness," they said, "and would not create an anxiety attack in the general public."

Judge Doug Walker heard the case. Since the families had offered to pay Renea's medical bills, he awarded her the $900, but no more -- no motion-sensor light, no punitive damages, no lost wages, no pain and suffering.

Taylor "cried and cried" when she and Lindsey lost in court, her mother Jill says. "She felt she was being punished for doing something nice." The teens declined to make a statement to reporters.

But Renea was happy to talk. Despite her victory in court, she was far from conciliatory. She said the girls showed "very poor judgment" and shouldn't have been "running around" at night since "something bad could have happened to them." (You mean, some evil Cookie Monster could sue them or something?) As for her lawsuit, she said she hopes "the girls learned a lesson." She also appeared on CNN, claiming the girls pounded on the door so hard they damaged it.

But even with final judgment of the local court, the story was far from over. The story came out in the state's largest newspaper, and people from all over Colorado were outraged that someone would be so mean as to sue two teens trying to do something nice for their neighbors. They had even apologized, in writing, and offered to pay her medical bills! Scores of people offered to donate to a fund to pay the legal judgment; several offered to pay it all. The girls said if they ended up with more money than the court awarded, they'd donate it to the "Never Forgotten" scholarship fund for students from Columbine High, the Denver-area school that was the scene of the 1999 mass-murder shooting spree by two students. If donors preferred, they'd use the money for their own college educations. So much money rolled in they added other charities, including two children's hospitals.

But that's not the end either. Within days the story spread throughout the country. Taylor and Lindsey were invited to appear on various TV shows, from "Good Morning America" to "The Tonight Show with Jay Leno". They turned down most of the requests. "We were afraid Mr. Leno might make jokes at our neighbor's expense," said Lindsey's mother, Martha. But they did appear on GMA since they "thought it might be their one shot to tell the country they're still not afraid to do good deeds." She stressed the two families were not upset with the Youngs or the judge.

Taylor's mother agreed with the low public profile. "The girls don't need to go on these shows to defend themselves," Jill Ostergaard says. "Their best defense is the way they live their lives every day."

Sadly, Richard Ostergaard felt it necessary to go back to court the day after the judgment: he got a restraining order against Renea's husband, Herb Young. Herb, he said, was making harassing phone calls to them. Herb says his phone has been ringing a lot too, and that he and his wife have been getting insults and threats from "crackpots". They claim they have been told they "are what's wrong with society" and that they "should be found dead in a ditch."

"I don't believe the girls meant for this to happen," Herb says. "But they could have prevented it from happening if they had just shut their mouths when they came out of court." Yet remember, the girls refused to make any statement to reporters after they lost their case, and only relented and appeared on some talk shows after Renea started talking to the media. The initial newspaper report was built from court records -- and Renea's statements to the press. Yet they complained "their side" was ignored in the press.

"All this over cookies," Renea says, completely missing the point. She says she's "devastated" by the reaction to her suit, and is so stressed she can't return to her part-time job at Wal-Mart.

Let's hope she doesn't sue over her continuing stress. A check of court records by the Denver Post found that the cookie case wasn't the first time the Youngs had been in court. They had sued, or been sued, at least nine times, with at least two of the cases involving restraining orders, the Post says. They were sued by a bank, a creditor, a construction company, an employee, and more -- and most of the time they lost.

"Our home is like a funeral parlor," Renea comlpains. "They've robbed us of our laughter. My spirit, my soul, is damaged." She says she and Herb may have to move out of town.

Nearly five years after Rhonda Buckley was found strangled in her Newcastle home, a man was due to go on trial on Monday for her murder. But yesterday Lyle Simpson, 47, was suddenly released from jail after the case was no-billed - shelved unless further evidence comes to light.

The Director of Public Prosecutions, Nicholas Cowdery, QC, refused to disclose why Simpson had walked free, outraging the Victims of Crime Assistance League and the Buckley family. "There could be reasons, I don't know what they are. The comment is no comment," the DPP's spokesman said yesterday.

Mrs Buckley was found strangled in bed at about 7.30pm on September 25, 2001.

The Herald understands crucial evidence against Simpson was deemed inadmissable, but the DPP does not have to tell the court its reasons. The defence claimed in pre-trial hearings, which began on Tuesday, that Simpson was still suffering from carbon monoxide poisoning when he was interviewed by police - he had tried to gas himself in the car the day after Mrs Buckley's death. NSW Supreme Court judge Justice Anthony Whealy was due to rule yesterday on whether the interview could be used in the trial. He had already ruled Simpson's attempted suicide was inadmissable because it was prejudicial.

Phone calls police allege Simpson made to his wife telling her he had "killed two sheilas" were also ruled inadmissable.

Wednesday, March 23, 2005

EYEWITNESS EVIDENCE NOT ENOUGH

Police who witnessed a gang rape in progress are furious after charges were dropped against six teenagers on the grounds that the alleged victim was too frightened to face court. A source close to the case said: "The officers on duty did a great job to come across the incident in the first place. The follow-up work, logistically, was huge. As a result, police had gathered a strong case, as strong as a case of this nature can be. "What the officers saw for themselves that night would have gone a long way in corroborating the girl's story, particularly what she said immediately after the event. But there can be no case without the girl taking the stand. "Put yourself in her shoes. She would have been cross-examined not by one barrister but six and there is no use forcing someone into a witness box. In the end, she just wanted to let it go."

Police records show that the 18-year-old woman had been involved in some fondling with an acquaintance outside the Standard Hotel in Orange on September 24, 2003. She declined an offer for sex with him and headed back to the hotel. As she did so, five friends of the acquaintance physically forced her to cross a street into a small open area beside the town's Uniting Church. Once there, they forcefully removed her underpants and sexually assaulted her.

The complainant was unable to state how many times she had been raped, or by whom. But the statement later reads: "General duties police drove onto the scene whilst the sexual assault was occurring." The alleged attackers, aged 17 and 18, were charged with aggravated sexual assault in company occasioning actual bodily harm, which carries a punishment of life imprisonment. The source said: "Given the circumstances, the police are bitterly disappointed. But unless present court procedures change, or the girl has a change of heart, there cannot be a case." The woman has since moved to an unknown location.

A spokesman for Attorney-General Bob Debus said: "The DPP had concerns about deficiencies in the evidence and as a result, decided to withdraw. His decision does not preclude reinstating proceedings at a later date. "There is no value to be gained in explaining to the court or the defence what those deficiencies were."

Sanity eventually: "The U.S. Supreme Court ruled Tuesday in a California case that sentencing courts may ignore it when a capital murder suspect finds religion after his arrest. At an Orange County boarding house, William Charles Payton raped and killed another boarder, then tried to kill the boarding house owner and her 10-year-old son. During the 21 months he spent behind bars before he was convicted, Payton "made a sincere commitment to God, participated in ... Bible study and a prison ministry ... " The prosecutor told the jury they could not consider this behavior in sentencing, the jury recommended the death penalty and the judge complied. Eventually, a federal appeals court ruled that the trial judge erred in not allowing the jury to take the post-arrest behavior into account. But the Supreme Court reversed, ruling 5-3 that under federal law the U.S. courts may not review a state court verdict unless it is an unreasonable application of federal law, as interpreted by the high court".

Tuesday, March 22, 2005

CRIME DOES PAY -- IN BRITAIN

A teenage criminal who received 567,000 pounds in compensation after falling through a roof while trespassing boasted about his wealth yesterday, saying that he was looking forward to buying "a few houses and a flash car". Carl Murphy, 18, got the payout last week, nine years after being injured in a 40ft fall at a warehouse in Bootle docks, near Liverpool, prompting angry protests from crime victims and politicians....

Murphy received his compensation after suing the company that owned the warehouse. He claimed that if the perimeter fence had not been in disrepair he would not have been able to gain entry and suffer his injuries.

He is now partially blinded in his left eye and has 17 metal plates in his skull as a result of the fall. He also claims that the incident has caused him to suffer from behavioural problems. It annoys me that people think I don't deserve this money after all I've been through," he said. "I'm going to spend my money on whatever I want and everyone who called me 'Tin Head' can go get stuffed."

Residents of Bootle, where Murphy lives, said that they were too scared to speak publicly about the case but privately described him as the area "king yob". One said: "He shaves his head so we can all see the scars. He likes to walk around and play the big man. "I've seen him yelling abuse at the shopkeepers, telling them how he is going to buy the shop with his compensation money and throw them out. He is a villain around here. Everybody knows him but no one wants to confront him. He has a big family and they all stand up for each other."....

Since Murphy's mother was jailed, he has lived with his grandmother, Barbara Murphy, who keeps a rottweiler in her home on nearby Church Grove. She said: "He never finished school because the teachers couldn't control him. He was a nice boy before the accident but ever since the injuries he has been difficult to control. He needs this money. That is him for life now. What is he going to do without it?" She said that Murphy does not work or attend school. Neighbours say that they see him drinking in the park with friends on most evenings or hanging around a local cafe.

The payout has been condemned by charities, which point out that victims of crime receive far less under the Government's criminal injuries compensation scheme. The parents of James Bulger received just œ7,500 following his murder, and the family of Damilola Taylor received œ10,000 following his murder. Clive Elliott, the director of the Victims of Crime Trust, said: "All rights to compensation should cease the moment a person breaks the law, in this case trespassing. "Wrongdoers think they are beyond the law - and in this case they have shown they can become quite well off by breaking it."

Monday, March 21, 2005

Sleepwalker cleared of murdering father

What a crock!

A British man was cleared of murdering his father after a court accepted his excuse he was sleepwalking at the time, a highly unusual defence seen just a handful of times in the country's legal history. Jules Lowe, 32, was facing life imprisonment for killing his 83-year-old father Edward in a savage beating at their house in Manchester, north-west England, an attack he did not deny but claimed to have no memory of. At the start of the case, prosecutors labelled Lowe's defence of sleepwalking "far fetched in the extreme".

However, after hearing expert testimony on the phenomenon, the jury at Manchester Crown Court on Friday opted for a verdict of not guilty by reason of insanity. Lowe will be sent to a secure hospital for tests. Described in court as a "quagmire of law", the defence of sleepwalking, officially known as automatism, has been used only in a tiny number of cases in British legal history.

Lowe attacked his father at the family home after a heavy drinking session in October 2003 before going to bed, the court was told. The next day, the body of his father, which had been punched, kicked and stamped on, was spotted in the house's driveway and police were called.

Nine months after the attack, Lowe first mentioned a history of sleepwalking to defence lawyers and he was subjected to "the most detailed scientific tests in British legal history", the jury was told.

Prosecutors suggested Lowe had simply got into a drunken brawl with his father and had blanked the killing from his mind, but the jury accepted he was not acting voluntarily due to sleepwalking. Judge Richard Henriques said the verdict did not mean Lowe was insane in the usual sense, just that he was subject to "automatism" because of sleepwalking.

Lowe will undergo tests in hospital, after which he will be released under certain conditions, possibly within months.

Police warned later that the publicity surrounding the case might tempt genuine criminals into attempting the same defence. "It may well be other people accused of serious crime will try to avail themselves of this defence, and each case will have to be judged on its merits," said Detective Chief Inspector Andy Durkin, who investigated Lowe.

Sunday, March 20, 2005

WHAT DO YOU HAVE TO DO TO WARN PEOPLE?

A man who became paraplegic after diving off a bridge when he was 14 has been awarded more than $1 million because a warning sign did not make the risk "obvious" to a child. Phillip James Dederer, now 20, said he saw the sign but, as a "cocky 14-year-old", he ignored it. The risk was "part of the thrill", he said.

Mr Dederer successfully sued the Roads and Traffic Authority and the Great Lakes Council in the NSW Supreme Court after he suffered extensive spinal damage when he dived off the Forster/Tuncurry Bridge on New Year's Eve in 1998.

The Great Lakes Mayor, John Chadban, said the judgement had implications for all signs in public areas. "It always makes you feel greatly concerned about your operations and all the responsibility that may exist for litigation." In 2002 there were changes to legislation, aimed at stemming litigation by individuals who had behaved recklessly.

Justice John Dunford said yesterday that while he accepted Mr Dederer had engaged in a "dangerous recreational activity", a 14-year-old, unlike an adult, could not have been aware of the risk of serious permanent injury.

Saturday, March 19, 2005

"INNOCENCE PROJECT" SUCCESSES

Innocence projects began opening prison doors for those wrongly convicted about the same time that Rose began serving his 27-year sentence. The first was founded in New York in 1992 to tap the potential of DNA for proving people innocent. Today, 30 or so projects are operating out of law schools and journalism schools around the country. Most aren't confined to DNA work but consider any conviction that can be upended by new evidence.

It can be cut and dried, as in one Los Angeles robbery case. A surveillance tape showed the 6-foot-6 robber walking past a ruler that had been painted on the frame of the Office Depot entry door. The man convicted of the crime, Jason Kindle, was a head shorter.

Or the evidence can involve a web of false confessions, coerced accusations, eyewitness mistakes and laboratory blunders that can take years to unravel.

Two California projects have won the release of Kindle and six other men since 2000. Dozens of cases are under investigation at the California Innocence Project at California Western School of Law in San Diego and the Northern California Innocence Project, based at Santa Clara University with a new satellite office at Golden Gate University in San Francisco. The Rose victory was the first for Golden Gate.

Relatively crude tests performed on rape evidence in 1995 did not exclude Rose as the possible rapist. Attempts to DNA-type the semen sample had failed then. But after many advances in technology, a successful test became possible. Former Golden Gate student Marilyn Underwood "pushed and pushed and pushed," she said, until the state DNA lab confirmed it still had the evidence and, yes, there was enough to do a DNA test. Two other students with two supervising lawyers wrote the petition that persuaded the judge to order testing. The results showed the evidence hadn't come from Rose and led to his release on Oct. 29.

After the victim's recantation, followed by more DNA results in January, another student team helped prepare a motion to have Rose declared "factually innocent." Granted a month ago, it led to the clearing of his criminal record. The judge, a former county prosecutor, called the experience "an education for me." One student, George Derieg, who worked on the final phase of the case, called it "exhilarating." Rose called the Innocence Project "the best thing that's ever happened to the justice system."

But Janice Brickley, the lawyer who supervised the project's work, asked in the court hearing for "a day of reflection" - on convicting an innocent man, a father whose youngest child hadn't been born when he went to prison, a son who couldn't support his mother when she went through cancer treatments, a grandson whose grandfather spent his life savings on a defense and died before seeing the exoneration. Brickley told the judge she had received an e-mail from a correctional officer, saying he felt "just terrible" that he didn't believe Rose when he said he was innocent....

In San Diego, Ken Marsh was freed last summer after 21 years in prison for the death of his girlfriend's toddler. When the Cal Western Innocence Project produced medical evidence pointing to an accidental death, Dumanis stipulated to Marsh's release and asked the court to dismiss the charges.

In the nation, thousands of criminals have been caught with the help of DNA technology, and more than 150 innocent people have been released from prison.

In 1985, Stoll, a carpenter and gas plant supervisor who'd never been in trouble before, was sentenced to 40 years. He was among those caught up in a frenzy over alleged sex rings targeting youngsters in Kern County. No physical evidence showed the children had been abused. The prosecutions ended when the children's stories escalated wildly. Most of the 40 or so convicted defendants were freed. Yet Stoll remained in prison. Abandoned by family and community, he thought he'd been forgotten - until an exonerated defendant persuaded his lawyer to do something for Stoll. The lawyer contacted the Innocence Project. Cal Western and Santa Clara students and lawyers worked on the case.

The defense team tracked down Stoll's now-grown accusers. Ridolfi personally paid to fly in witnesses for hearings. Four of the six men recanted. They said they never had believed their accusations but had been coerced by law enforcement and social workers. The fifth said he had no memory of the time. Only Stoll's sixth accuser - his son - stuck to his original story, though he could offer no details.

Stoll was released last spring, nearly penniless. Ridolfi and her partner, Innocence Project legal director Linda Starr, invited him to stay in their guest cottage for a year to get his bearings. He lives there today, surrounded by photos of friends but none of his son, his wife or his former Bakersfield home... Stoll has applied for state compensation that's available to innocent people who've lost money through wrongful imprisonment. It can amount of $100 for each day of loss, but it's rarely granted and never yet to someone exonerated through the Innocence Project.

Friday, March 18, 2005

DISABILITY SHAKEDOWNS

Gary Walker was horrified when legal documents arrived at his small restaurant notifying him that he was being sued for violating the Americans with Disabilities Act, the federal law that requires wheelchair ramps and other features for the disabled. The feeling turned to anger when Walker found out the man suing him, Shiloh Hobleman, had filed a series of practically carbon-copy lawsuits against more than a dozen small businesses in the area. "Hobleman is what can only be characterized as a `serial plaintiff,'" Walker's lawyer said in court papers. "Except for the named defendants, each of the ADA complaints is virtually, if not exactly, identical to the instant suit — right down to the typographical and grammatical errors."

Around the country, business owners, judges and politicians are complaining that employers are being hit with a spray of "drive-by" ADA lawsuits that they say are little more than shakedown attempts by lawyers hoping for a quick cash settlement. Those who are covered under the ADA say the lawsuits are necessary to get business owners to make their buildings more accessible. Among other things, the 1990 federal law requires ramps, parking stalls and signs, and dictates the height of countertops, the placement of toilet grab bars and the width of doors.

But some judges have suggested that a large number of ADA lawsuits are frivolous actions filed by a small number of disabled people and their lawyers. And a Florida congressman plans to reintroduce a bill to address what he sees as a serious problem. U.S. District Judge Gregory Presnell of Orlando, Fla., noted in a ruling last year that Jorge Luis Rodriguez, a paraplegic, had filed some 200 ADA lawsuits in just a few years, most of them using the same attorney. "The current ADA lawsuit binge is, therefore, essentially driven by economics — that is the economics of attorney's fees," Presnell wrote. He said Rodriguez's testimony left the impression that he is a "professional pawn in a scheme to bilk attorney's fees" from those being sued.

In December, a federal judge in Los Angeles said a man who filed hundreds of lawsuits accusing businesses of violating the ADA was running an extortion scam. The judge barred the plaintiff, Jarek Molski, from bringing any more lawsuits without court permission. Molski, who has used a wheelchair since he was paralyzed in a motorcycle accident a decade ago, has filed 400 suits since 1998 against restaurants, wineries, bowling alleys, banks and other places. In most cases, the judge said, Molski demands $4,000 a day until the target of his suit is brought into compliance with ADA, then agrees to a cash settlement.....

Hobleman's attorney, Ted Vrana, dismissed suggestions that he filed Hobleman's ADA lawsuits simply to collect the legal fees. "I think the law is intended to assist the disabled people," Vrana said. "And if the business doesn't comply, as I read the law, there is a strict liability." Hobleman does not have a listed number and could not be reached for comment. Hobleman, who uses a wheelchair, charged that the bathroom faucets in Walker's restaurant did not comply with the ADA, the "Handicapped Accessible" sign was in the wrong place, and a handicapped parking spot was not marked properly.

Walker fixed the problems, and a federal judge refused to let Hobleman's lawyer recover money from Walker for legal fees. Many store owners, however, agree to fix the problems and pay the legal fees simply to avoid going to court. "You can't just ignore the lawsuit," Walker said. "The sad part of it is there's got to be thousands of small businesses, if not tens of thousands, that have already paid these attorneys just because they were horrified about having to go to federal court." For his part, Walker had to pay more than $2,200 defending himself against the lawsuit.

Rep. Mark Foley, R-Fla., is pressing for a law that would give businesses notified of ADA violations 90 days to comply before they could be sued. "Too many lawyers view ADA lawsuits as a quick way to become millionaires and too many small businesses have become their prey," the congressman said.

Dedication

In memory of Fatty Arbuckle, a good and innocent man whose movie career as a comedian was ruined by an opportunistic prosecution. The woman he was accused of murdering almost certainly died of natural causes. He was eventually cleared but the damage was done.

A thought

I love the Mae West story where some judge wearing a robe during the middle of the day, and seated in a high chair peered down and asked her, 'Are you showing contempt for my court?' To which she replied, 'I’m doing my best not to show it, your honor.' Maybe we need to give up trying to not show it."